Opinion
B190613
4-19-2007
In re the Marriage of TAMMI and CHRISTOPHER BERND. TAMMI BERND, Respondent, v. CHRISTOPHER BERND, Appellant.
Gary M. Weinstein for Appellant. Los Angeles County Child Support Services Department, Lori A. Cruz and Fesia A. Davenport for Respondent.
NOT TO BE PUBLISHED
Christopher Bernd appeals the denial of a motion to set aside an order modifying his child support obligation. We affirm the denial of the motion to set aside the modification but remand the matter to permit the amount of the child support arrearage to be recomputed in conformance with Code of Civil Procedure section 695.211, subds. (a), (b) and (c).
BACKGROUND
1. Stipulated judgment and modification.
On August 26, 1999, Christopher and Tammi Bernd entered into a stipulated judgment for dissolution of their marriage pursuant to which Christopher agreed to pay monthly child support in the amount of $198 for Christopher Jr., $325 for Joshua and $577 for Samantha. In August of 2001, Tammi sought an increase in child support for Joshua and Samantha, the two children who remained minors. Tammis declaration in support of the modification indicated Christopher had moved to Florida and his income had increased. Tammi served the OSC re modification on Christopher on August 23, 2001, by mail at an address on 142nd Avenue in Largo, Florida. Christopher failed to appear and, on October 3, 2001, the trial court increased the child support payable with respect to Joshua and Samantha to $521 and $869, respectively, or a monthly total of $1,390.
We refer to the parties by their first names for the sake of clarity and not out of disrespect. (See In re Marriage of Brinkman (2003) 111 Cal.App.4th 1281, 1283, fn. 1; Askew v. Askew (1994) 22 Cal.App.4th 942, 947, fn. 6.)
2. Notice of the Countys involvement.
On January 16, 2004, the County of Los Angeles Child Support Services Department (the County) notified Christopher that Tammi had assigned the child support payments for collection pursuant to Welfare and Institutions Code section 11477, subdivision (a), and that future payments should be made to the court trustee.
3. Christopher seeks to set aside the modification.
On June 2, 2005, Christopher filed an OSC re modification of child support and to determine arrearage. In support of the OSC, Christopher declared he became unemployed in May of 2001 and moved to Florida where he found employment commencing July 1, 2001. Christopher moved to Indiatlantic, Florida, and purchased a home there in November of 2001. Christopher asserted that, at the time the notice of the OSC re modification was mailed to an address in Largo, Florida, he was living in Indiatlantic, Florida. Christopher declared that on November 8, 2001, Tammi sent him a ruling that stated Christophers child support obligation was now $1,390 per month. Christopher claimed the modification was based on inaccurate information and was issued without proper notice.
Christophers declaration indicated that in January of 2002, his attorney advised him it would cost $2,000 to seek modification of the order. Christopher, who had just started a new job, completed the necessary forms and mailed them to his attorney, who, in turn, forwarded them to Tammi. Counsel calculated Christophers child support to be $1,052 per month until January 1, 2002 and $864 per month thereafter. Christopher asserts he and Tammi agreed to modify the order consistent with these calculations. However, Tammi never went to the attorneys office to sign a stipulation as she had promised. Thereafter, Christopher and Tammi agreed in a telephone conversation that Christopher would continue to pay $905 per month, the amount of child support due under the stipulated judgment entered in 1999, until the matter could be heard in court.
Christopher claimed a hardship deduction upon the birth of a child of his then current marriage.
In April of 2002, Christophers salary fluctuated and his attorney calculated the child support payments to be $972 in 2001 and $849 in 2002. Tammi agreed to modify the child support order to reflect these amounts but again failed to sign a stipulation to that effect.
In January of 2004, Christopher traveled to California to intervene on Joshuas behalf in a juvenile court matter. At that time, Christopher and Tammi reached an agreement with respect to custody and support for Joshua and Samantha but Tammi again failed to appear at the attorneys office to sign a stipulation. Christopher returned to Florida with Joshua to learn he had been fired.
The County became involved in the case in January of 2004. The County refused to acknowledge Christophers payments to Tammi in December of 2003 and January of 2004, and refused to acknowledge that Christopher had custody of Joshua after January of 2004 and had custody of Samantha after June 28, 2004. Christopher and his current wife are now receiving food stamps, have exhausted their savings and had their $2,768 income tax refund seized by the County.
Christopher claimed Tammi knew when the OSC re modification was served in August of 2001, that Christopher was living in Indiatlantic, Florida. Christopher asserted this was consistent with Tammis previous conduct in the case.
4. The trial court modifies the child support order and continues the matter with respect to the 2001 modification and arrearage.
On August 24, 2005, the trial court modified the child support order and directed Christopher to pay child support of $123 per month for Samantha. The trial court granted Christopher Jackson credits (Jackson v. Jackson (1975) 51 Cal.App.3d 363) for those periods of time when Joshua or Samantha had been in Christophers custody. The trial court continued the hearing to December 14, 2005, for a determination of the arrearage, if any.
On December 13, 2005, Christopher filed a Declaration of Payment History in which he claimed he had paid approximately $4,000 more in child support than was required under the stipulated judgment entered in 1999.
On December 14, 2005, the County filed an audit indicating Christopher was in arrears as of November 2, 2005, in the amount of $18,017.19 in child support consisting of $16,682.82 in principal and $1,334.27 in interest.
The trial court found Christopher had been current through September 1, 2001, and continued the matter to February 8, 2006, for further proceedings on the motion to set aside the modification. The trial court ordered the County to audit the case in two ways, first, based on the stipulated judgment of 1999 and, second, based on the stipulated judgment as modified in 2001.
5. Further declarations of the parties.
On January 25, 2005, Tammi filed opposition to Christophers motion to set aside the modification of 2001. She declared she notified Christopher by telephone before and after the October 2001 hearing and mailed the notice of the hearing "to the only address that he would give me at the time. After the fact he told me (via telephone) that he did not live at that address and refused to give me the correct one. I did not make up a Florida address off the top of my head." Tammi asserted Christopher "finally" gave her a correct address in December of 2001 when Tammi told him she needed it before she would allow the children to visit Christopher.
In response, Christopher declared he gave Tammi his Florida address shortly after he rented an apartment in Indiatlantic, Florida, on August 10, 2001. Christopher further averred he purchased a ticket on October 16, 2001, for Joshua to travel to Florida on November 21, 2001 and return to Los Angeles on November 27, 2001. Thus, contrary to Tammis declaration, she knew of the Indiatlantic address prior to December of 2001. Christopher denied he ever refused to give Tammi his address and noted he made child support payments to her on August 7 and 31, 2001.
The County opposed Christophers motion to set aside the modification of 2001 on the ground Christophers request was untimely in that he did not seek relief within the six-month limitation period found in Code of Civil Procedure section 473 and Family Code section 3691.
At the hearing on February 8, 2004, the County acknowledged its audit failed to give Christopher credit for all payments he had made, resulting in an inaccurate arrearage.
The trial court took the matter under submission and, on February 24, 2006, issued its ruling. The trial court denied Christophers motion to set aside the modification as untimely. The trial court noted Christopher "concedes that he was notified of the October 3, 2001 order by [Tammi] in November 2001. He has waited over five years to file this motion with no adequate explanation for the delay." With respect to the child support obligation, the trial court gave Christopher credit for all the payments claimed in his Declaration of Payment History and also gave Christopher credit for two payments of $521 which were reflected in the Countys audit of December 14, 2005, but were not credited to Christopher. The trial court concluded Christopher was in arrears as of February 10, 2006, in the amount of $20,718.79, consisting of $19,636.06 in principal and $1,082.73 in interest. The trial court attached to its ruling a copy of the audit it had relied upon.
CONTENTIONS
Christopher contends the modification of October 3, 2001 is void on its face because he did not receive notice of the hearing and the trial courts audit does not reflect the correct amount of the arrearage.
DISCUSSION
1. Validity of the modification.
a. The modification is not void on its face.
Christopher contends the 2001 modification is void on its face because Christopher was not properly served at his residence in Indiatlantic, Florida. (In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1161; In re Marriage of Kreiss (1990) 224 Cal.App.3d 1033; Fam. Code, § 215.) Christopher asserts a judgment that is void on its face may be attacked at any time. (Carlson v. Eassa (1997) 54 Cal.App.4th 684; Nagel v. P & M Distributors, Inc. (1969) 273 Cal.App.2d 176.) Thus, the six-month time limit set forth in Code of Civil Procedure section 473 and Family Code section 3691 does apply because the modification is void on its face for failure to comply with Family Code section 215.
Family Code section 215 provides: "After entry of a judgment of dissolution of marriage, nullity of marriage, legal separation of the parties, or paternity, or after a permanent order in any other proceeding in which there was at issue the visitation, custody, or support of a child, no modification of the judgment or order, and no subsequent order in the proceedings, is valid unless any prior notice otherwise required to be given to a party to the proceeding is served, in the same manner as the notice is otherwise permitted by law to be served, upon the party. For the purposes of this section, service upon the attorney of record is not sufficient."
Christophers argument is not persuasive. A judgment or order is void on its face if the defect or invalidity is apparent upon examination of the record. (Carlson v. Eassa, supra, 54 Cal.App.4th at p. 697; National Diversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, 415; Estate of Lee (1981) 124 Cal.App.3d 687, 691.) Such an order may be set aside at any time after its entry. (Nagel v. P & M Distributors, Inc., supra, 273 Cal.App.2d at p. 181.) However, the order modifying Christophers child support obligation was not void on its face in that examination of the record reveals the notice of the OSC re modification was served on Christopher at a residential address in Largo, Florida.
In each of the cases Christopher relies upon, there either was no service upon the opposing party or service was made on an individual who was not authorized to receive service of process. In In re Marriage of Lippel, supra, 51 Cal.3d at p. 1161, notice of a request to enter default was not served on the husband. In In re Marriage of Kreiss, supra, 224 Cal.App.3d 1033, the wife was not served with notice of a motion to terminate spousal support. The lack of service rendered the judgment void on its face and subject to collateral attack at any time. (Id. at pp. 1039-1040.)
In Nagel v. P & M Distributors, Inc., supra, 273 Cal.App.2d at p. 185, the plaintiff served one Ulf Ljungberg and the proof of service indicated Ljungberg was "a person `authorized to receive service of process pursuant to [Code of Civil Procedure] section 411 . . . ." Nagel found this statement, at best, amounted to a legal conclusion unfounded in fact. Because the individual served was not shown to be an agent for service of process of the defendant corporation, the resulting default judgment was void on its face.
Here, the modification is not void on its face for want of personal service because examination of the record demonstrates Christopher was served at a residential address in Largo, Florida. Thus, Christophers claim depends on his assertion the record shows Tammi knew he did not live in Largo, Florida, when Christopher was served with the notice of OSC re modification on August 23, 2001. However, as discussed below, this was an issue of fact which the trial court implicitly resolved in Tammis favor.
b. The record does not reveal Tammi knowingly served Christopher at an incorrect address.
Christopher argues Tammi admitted she knowingly served him at an incorrect address in her responsive declaration which states: "I mailed the court paperwork to the only address that he would give me at the time. After the fact he told me (via telephone) that he did not live at that address and refused to give me the correct one." Christopher asserts Tammi made a similar admission at the hearing on the motion to set aside the modification when she stated she notified Christopher by telephone and served "him at the address that he gave me, which he then later told me, when I told him of the judgment, it wasnt his address, and he refused to give me his current address until December of that year when our children were supposed to go out there for Christmas. I told him, `you are not going to give me an address; Im not going to put them on a plane. Because I need to know where they are going. He did know of it. But he didnt give me the information that I could serve him then over the telephone."
Contrary to Christophers assertion, neither of these statements by Tammi reveals that she knowingly served him at the wrong address. Rather, based on these statements, the trial court properly could conclude Tammi served Christopher at the last address he gave her.
Christopher claims nothing in the record suggests he ever lived in Largo, Florida. However, Christopher does not assert in any of the lengthy declarations he submitted to the trial court that he never lived in Largo. He asserted only that he did not live in Largo at the time Tammi served the OSC re modification.
The fact Tammi sent one of the children to visit Christopher in late November of 2001 does not require a different result in that the relevant date is August 23, 2001, the date of service of the OSC re modification. Similarly, Tammis receipt of child support payments from Christopher in the month of August, 2001, does not indicate Tammi knew the Largo address was no longer valid because the checks Christopher sent Tammi bore his previous address in California, not a Florida address.
Christopher notes Tammis credibility is suspect in that she agreed to modification of the child support order in January and April of 2002, but on each occasion failed to sign any documents. Christopher argues nothing in the record corroborates Tammis claim he refused to give her his correct address. He notes he was current in his child support, he was in regular contact with his children and he had never attempted to avoid service of process. Although these factors were among those the trial court could consider in determining the facts underlying this situation, the trial court chose to credit Tammis testimony. Because the record does not disclose any abuse of discretion in the trial courts ruling in this regard, Christophers claim fails.
2. The matter must be remanded for recomputation of the arrearage.
Christopher contends that, even if the modification of October 2001 is upheld, the trial courts computation of the arrearage is incorrect. Christopher notes the trial court failed to give him credit for a payment made in October of 2001, among other errors.
The County claims the trial court gave Christopher credit for all payments made. However, the County asserts the audit prepared by the trial court failed to apply Christophers payments as required by statute. Specifically, at least in some instances, the trial court applied Christophers payments first to interest, then to the installment of the current obligation, and then to the principal balance on the accrued arrearage. This distribution is inconsistent with Code of Civil Procedure section 695.221, which requires installments to be applied first to the current payment, then to accrued interest and then to the arrearage. (Code Civ. Proc., § 695.221, subds. (a), (b), (c).) The County asserts the statutory scheme for distribution is mandatory. Thus, the matter should be remanded for an accurate determination of arrears.
Because the Countys argument in this regard is compelling, we remand the matter to the trial court to permit the County to recompute the arrearage in conformance with Code of Civil Procedure section 695.221, subdivisions (a), (b), (c) and the trial courts conclusion that Christopher be given credit for all payments documented in the Declaration of Payment History filed in this case by Christopher on December 13, 2005.
DISPOSITION
The order denying Christophers motion to set aside the October 3, 2001 modification of the child support order is affirmed. The matter is remanded to the trial court for computation of the arrearage in conformance with Code of Civil Procedure section 695.221, subdivisions (a), (b) and (c) and the trial courts conclusion that Christopher be given credit for all payments documented in the Declaration of Payment History filed in this case by Christopher on December 13, 2005.
Each party to bear its costs on appeal.
We concur:
CROSKEY, J.
ALDRICH, J.